The nature of world politics significantly changed in the aftermath of 9/11. The United States’ response to the attack on the Twin Towers and the Pentagon was instantly perceived as being within the realm of war and armed conflict rather than that of the criminal law. Terrorist attacks became “acts of war”, and the “War on Terror” involved the military as much as the police. This response was guided not simply by inter-state tensions but by an intra-state shift in the balance of power. The Bush Administration, in adopting the term “global war on terror”, claimed authority to use extensive powers normally unavailable in peacetime, including the right to imprison indefinitely those who were deemed enemies of the state wherever they might be. In effect, even alien terrorist suspects resident for many years in the US could now be held at the military base at Guantanamo Bay alongside military persons captured in combat zones.[1] They could be tried without a jury behind closed doors, and their defense counsel could be denied access to the testimony of incriminating witnesses. As a result, hundreds of men, many of whom had shown no obvious hostility towards the US, were arrested in places across the world and were transferred as “enemy combatants” to Guantanamo Bay, a “legal black hole” considered by the US Administration to be beyond the reach of the US courts.

Human rights organizations, civic societies, and academic institutions have long been urging the closure of the Guantanamo prison. Their demand has been for fair justice, a proper right to a hearing in a civil court, and respect for all human rights. However, over ten years have passed since the establishment of the prison, and it is now over three years since President Obama took office. His promise to close the prison, made during his election campaign, received a wholehearted welcome across the world, but the goal appears now to have slipped beyond reach. Why is this so? Was the promise merely a false one made to gain cheap overnight popularity? Can human rights and fundamental freedoms really be sacrificed purely to serve the self-interest of a politician? It is a question that demands a prompt answer.

When the Guantanamo prison opened in January 2002 it was clear that it had been designed for long-term detention. It has since been called a “warehouse in the war on terror”, and enemy combatants are held there without future hope of release despite President Obama’s promise of closure. According to Amnesty International, detainees have ranged from young teenagers to the very elderly. The military has interrogated them, prosecuted them, defended them, judged them, and, if death sentences have been imposed, it has acted as executioner. Current detainees have been denied access to counsel, to consular representatives, and to family members. They have not been notified of the charges against them, and their detention is indefinite. Interrogation of the detainees continues, and the Red Cross has described the prison now as “principally a center of interrogation”.

Many thought to have committed terrorist acts or simply to be members or supporters of terrorist organizations have been, and still are, held incommunicado at Guantanamo. Their fate has differed, but most have been subjected to a unique form of detention based not on the wrongs that they have committed but on the assessed danger to which their release could give rise. Their detention could possibly last as long as the seemingly never-ending War on Terror. They are deprived of rights under international law, and they are deprived of the protection that is offered always to combatants and civilians in war and armed conflict under the Geneva Conventions of 1949. Moreover, several governments around the world, by their involvement in rendition, are believed to have assisted the US in effecting these wrongful detentions.

If one examines the full story of how the Guantanamo prison came into being and why prisoners remain there, a common theme emerges. Anthony D. Romero, Executive Director of the American Civil Liberties Union argues that its continued existence as a prison must be due to the fact that the US regards itself as being engaged in a global war without end. Its Administration’s perception of an “everywhere-and-endless war” now threatens to make permanent the policies that created Guantanamo. What may at first have been viewed merely as a war-induced temporary exception could now become a very permanent exception. Referred to as a “laboratory” in the War on Terror, Guantanamo certainly gives the US a showcase for its military successes – a “virtual, offshore museum of victory-in-the making”. Its existence is only too clear, but its occupants appear as nothing more than a hazy collection of orange jumpsuits “rendered uniform”, as Professor J Comaroff argues, “by metal mesh and wire, the ephemera of incarceration”.

Guantanamo Bay apparently became the selected location not only for security reasons but also because it was considered to be beyond the jurisdiction of any US court. It was clearly outside US sovereign territory, and so, in the eyes of the US administration, detainees there would be deprived of legal protection both from American constitutional law and from international law. US law would certainly not apply to foreign nationals, who, it was assumed, would be unlawful enemy combatants. The Guantanamo prison would, therefore, create a “territorial trap for a mobile enemy”, putting its inmates beyond the rule of law and the protection of any courts, and at the mercy of the victors. The prison has been described as a “space of explicit, intentional, instrumental contradictions and absurdities – a stain on American justice”. Certainly it shows a total disregard for the values that the US tries to protect, namely personal freedom and human rights, and it represents a monstrous failure of justice.

During the lifetime of the Guantanamo prison, the world has undergone quite significant change both economic and political. Economically, the West became mired in financial debt, and a new wave of popular resistance to the perceived excesses of free-market capitalism, Occupy Wall Street, was seen to gain more than a small measure of international support. Politically, the Arab Spring swept some dictators from power, and the European financial crisis brought down some governments. Yet Guantanamo still goes on, and the prospects of it being closed in the near future appear bleak. It is widely argued that this should cause alarm not only among US citizens and civil liberties groups, but also among people all over the world. To safeguard their own citizens’ security, foreign governments must apply pressure now to ensure that past abuses are not repeated. Universal opinion demands the immediate closure of the Guantanamo prison, and an end for all time to detention centers justified by a permanent form of so-called ‘global war’.

The centuries-old American jurisprudence relating to fundamental freedoms and the foundational norms of the rule of law should never be compromised by Presidential decree. The principles of US practice in applying the norms of democracy, such as “beyond reasonable doubt”, “due process of law” and the “right to confront accusers in a court of law” must be fully respected and must apply equally to all terrorist suspects detained at Guantanamo or elsewhere. The norms of fundamental human rights, democracy, and personal freedom must be allowed to empower the powerless and provide a voice for the voiceless. These values must not be denied by the victors and the powerful in seeking to impose their own values on others.

In the 21st century the ideology of “an eye for an eye”, recognized as the law of retaliation, must be avoided. The practice of frontier justice is unacceptable in a civilized society. Otherwise the very legal instruments, regulations and conventions that took centuries for the world’s communities to develop at national and international level will lose their very credibility. Democracy, individual rights, legitimacy, accountability, and the rule of law all point to the need in emergency to avoid extreme measures. Whether in war or in response to terrorist action, the rule of law must always be sacrosanct. How else can the individual’s safety and freedom be assured?

Note

[1] For instances see, especially Chapter 9 by Stacy Sullivan in Liberty Under Attack, Reclaiming Our Freedoms in an Age of Terror, Richard C. Leone and Greg Anrig, Jr. (eds.), PublicAffairs 2007, New York, See also, James Yee with Aimee Molloy, For God and Country, Faith and Patriotism Under Fire, Public Affairs, 2007 New York.

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About the Author

Dr. Gyan Basnet, who holds a Ph.D. and an LL.M degree in International Human Rights Law at Lancaster University, U.K, is a Columnist, Lecturer & Researcher in International Human Rights Law and a Human Rights and Constitutional Law Lawyer in the Supreme Court and Subordinate Court of Nepal. He is the Author of the forthcoming book ‘Human Rights & the Struggle against Human Trafficking: The Case of Nepal.’ (Intersentia, 2015) Email: [email protected]